Friday, September 20, 2013

AG Mandatory Minimum Policy Does Not Confer Benefits to Defendants Already Charged and Convicted

Barnes pleaded to possession with intent to distribute 50 grams of methamphetamine and was sentenced to the statutory mandatory minimum sentence of 120 months of imprisonment.  Barnes argued in his appeal that the Attorney General’s memorandum dated August 12, 2013, affords him sentencing relief.  The panel rejected that argument because the memo was issued after Barnes was charged and convicted, and because it expressly notes that the “policy set forth herein is not intended to create or confer any rights privileges, or benefits in any matter, case, or proceeding.”

The panel also rejected Barnes’ argument that the Government breached the plea agreement by failing to file a § 5K1.1 motion for downward departure.  The plea agreement left any such filing to the Government’s discretion, and Barnes agreed at the plea hearing that no promises existed outside the plea agreement.

As a side note, the Attorney General also issued a memorandum on August 29, 2013, detailing how the new mandatory minimum prosecution policy applies to pending cases.  The memo encourages prosecutors, in their discretion, to apply the policy to defendants who have pled guilty but have not been sentenced.  The memo also specifically states that the policy is not retroactive to defendants already sentenced.

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